Allowed

C/M, Shivaji Junior High School Chaubighai, Kanpur Nagar, and Another v. State of U.P. and 2 Others

Allahabad HC10 Dec 2018WRIA/25945/2018

Case brief

AI extract

What is this about?

This High Court quashed the District Basic Education Officer's order restricting teacher appointments. Relying on RTE Act Section 26 and a prior judgment, the court directed the officer to allow the school management to fill sanctioned posts within six weeks.

What did the court decide?

The impugned order of July 27, 2018 is quashed. The District Basic Education Officer is directed to examine papers and take a positive decision within six weeks to permit filling of sanctioned posts.

C/M, Shivaji Junior High School… — Pension and Retirement Benefits | Allahabad HC (2018)

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Court No. - 4

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Case :- WRIT - A No. - 25945 of 2018

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Petitioner :- C/M, Shivaji Junior High School Chaubighai, Kanpur Nagar, And Another Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Suresh Chandra Shukla Counsel for Respondent :- C.S.C.,Akhilesh Chandra Srivastava

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Hon'ble Ajit Kumar,J.

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Heard learned counsel for the parties and perused the record.

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By means of this writ petition, the petitioners have questioned the correctness of the order dated 27th July, 2018 passed by the District Basic Education Officer, Kanpur Nagar, whereby the directions have been issued that the appointment on the post of assistant teachers and headmaster can be made as per the minimum norms standard prescribed for i.e. three assistant teachers, one clerk and two peons.

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The contention advanced by the learned counsel for the petitioners is that once under the impugned order, the 3rd respondent has admitted that there were one post of headmaster and eight sanctioned post of assistant teachers and it has not come on record anywhere that sanction of post at any point of time was recalled or revoked, there was no occasion for the respondents to restrain the petitioner-Committee of Management from making appointments against the sanctioned strength. He further submits that physical verification of the institution was carried out in which large number of the students were found to be registered and also students in large number found to be present.

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In view of the above further argument advanced is that the 3rd respondent has manifestly erred in restraining the Committee of Management, namely, the petitioner from proceedings with the selection and appointment on the vacant situations which are well within the sanctioned strength.

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Learned counsel for the petitioner has also drawn the attention of the court towards a detailed judgment dated 23rd February, 2018 passed in Writ-A No.- 36910 of 2016 in C/M Dwivedi Mahadev Prasad Purva Madhyamik Vidyalaya and another v. State of U.P. and four others , wherein identical controversy was involved and this Court after referring to the order/ Circular letter issued by the Direction of Education

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(Basic), U.P., Lucknow dated 7th January, 2015 and Rule 7 (3) & (4) of The Uttar Pradesh Junior High School (Payment of Salaries of Teachers and other Employees) Act, 1978 as held vide para 9, 10, 11 and 12 thus:-

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"9. It would also be relevant to take note of section 26 of the Right of Children to Free and Compulsory Education Act, 2009, which mandates that the appointing authority, in relation to a school established, shall ensure that vacancy of a teacher shall not exceed 10% of the total sanctioned strength. Section 26 of the Act of 2009 is reproduced hereinafter:-

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"26. Filling up vacancies of teachers. - The appointing authority, in relation to a school established, owned, controlled or substantially financed by funds provided directly or indirectly by the appropriate Government or by a local authority, shall ensure that vacancy of teacher in a school under its control shall not exceed ten per cent of the total sanctioned strength."

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10. Rule 3 of 1978 Rules also casts an obligation upon the authorities to fill up the vacant post within two months of occurrence of vacancy. The authorities of the State are, therefore, enjoined by law to ensure that any vacancy is not allowed to exist beyond two months in an institution imparting education to students between 6 to 14 years of age.

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11. In the facts and circumstances of the present case, as the document issued under the signatures of the District Basic Education Officer contained in Annexure-3 is not disputed in the counter affidavit, and sanction of seven posts of Assistant Teacher is not disputed, it would be appropriate to observe that prima facie existence of seven posts in the institution is reflected and in such circumstances, the authorities would not be justified in restricting recruitment only to four posts of Assistant Teachers.

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12. This petition accordingly stands disposed of with a direction upon the District Basic Education Officer concerned to examine existence of duly sanctioned posts existing in the institution in terms of rule 7(3), and thereafter proceed to permit the Committee of Management to fill up the posts in accordance with law. Such sanctioned posts would not be automatically reduced in view of the circular of Director dated 7.1.2015. The required consideration would be made by the officer concerned within a period of two months from the date of presentation of certified copy of this order."

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Sri Akhilesh Chandra Srivastava, learned counsel for the respondent No. 3 admits that the controversy in the present case is similar to the one decided by this Court in the case of Committee of Management, Dwivedi Mahadev Prasad Purva Madhyamik Vidyalaya ( supra ).

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Accordingly, the order impugned passed by the District Basic Education Officer dated 27th July, 2018 (Annexure-12 to the writ petition) is hereby quashed and consequences to follow.

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The District Basic Education Officer, Kanpur Nagar shall look into the papers forwarded by the Committee of Management and shall take a decision positively within a period of six weeks from the date of production of certified copy of this order.

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The writ petition is allowed with the aforesaid observations and directions.

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Order Date :- 10.12.2018 Atmesh

C/M, Shivaji Junior High School Chaubighai, Kanpur Nagar, and Another v. State of U.P. and 2 Others

Case brief

What is this about?

What did the court decide?

C/M, Shivaji Junior High School Chaubighai, Kanpur Nagar, and Another v. State of U.P. and 2 Others

Case brief

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What did the court decide?

What the court decided

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